Citation Nr: 0616409
Decision Date: 06/06/06 Archive Date: 06/13/06
DOCKET NO. 04-24 916A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUES
1. Entitlement to service connection for urinary
incontinence, to include as secondary to status post
meatotomy, due to urethritis.
2. Entitlement to a compensable rating for status post
meatotomy, due to urethritis.
3. Whether new and material evidence was received to reopen
a claim for entitlement to service connection for the
residuals of a head injury, and, if so, whether service
connection is warranted.
4. Entitlement to service connection for diabetes mellitus,
to include as secondary to herbicide exposure.
5. Entitlement to service connection for vasculitis, to
include as secondary to herbicide exposure.
6. Entitlement to service connection for peripheral
neuropathy, to include as secondary to herbicide exposure.
7. Entitlement to an initial rating in excess of 10 percent
for post-traumatic stress disorder (PTSD).
8. Entitlement to a total disability rating based on
individual unemployability (TDIU) due to service-connected
disability.
REPRESENTATION
Appellant represented by: Military Order of the Purple
Heart of the U.S.A.
ATTORNEY FOR THE BOARD
Dennis F. Chiappetta, Counsel
INTRODUCTION
The appellant is a veteran who served on active duty from
November 1965 to August 1968, including service in Vietnam
during the Vietnam War. This matter comes before the Board
of Veterans' Appeals (Board) on appeal from a May 2003
rating decision of the Department of Veterans Affairs (VA)
Regional Office (RO) in St. Louis, Missouri, which, in
pertinent part, found that new and material evidence had not
been received to reopen a claim for service connection for
residuals of a head injury, denied service connection for
peripheral neuropathy, vasculitis, and urinary incontinence,
denied a compensable rating for status post meatotomy, and
denied entitlement to a TDIU. The matter is also on appeal
from a September 2003 rating action by the St. Louis RO,
which, in pertinent part, granted service connection with a
10 percent rating for PTSD.
The issue of entitlement to service connection for diabetes
mellitus was not certified to the Board as on appeal.
However, upon complete review of the file, the Board finds
that the veteran perfected an appeal of this issue from a
February 2002 rating action. He submitted a timely notice of
disagreement in March 2002, and a statement of the case was
issued in June 2002. In a September 2002 statement, the
veteran indicated that he disagreed with the RO's denial of
the claim for service connection for diabetes, since he had
served in Vietnam. Although this statement was under the
heading "notice of disagreement," the veteran had already
submitted a notice of disagreement on this issue. A
substantive appeal does not have to be on a VA Form 9, and
this statement from the veteran can reasonably be construed
as his appeal on this issue. Therefore, the Board has
included this in the list of issues on appeal.
The issues involving the merits of the claim for service
connection for the residuals of a head injury, entitlement to
service connection for diabetes mellitus, vasculitis, and
peripheral neuropathy, entitlement to an increased rating for
PTSD, and entitlement to TDIU are addressed in the REMAND
portion of the decision below and are REMANDED to the RO via
the Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. Urinary incontinence was not shown during service, nor
has it been related to service or to a service-connected
disability.
2. Disability due to status post meatotomy is manifested by
no compensable symptomatology.
3. In April 1991, the RO denied the claim for service
connection for residuals of a head injury, to include
blackouts, headaches, and dizziness. The veteran did not
appeal.
4. Some of the evidence received since 1991 is so
significant that it must be considered in order to fairly
decide the merits of the claim of entitlement to service
connection for residuals of a head injury.
CONCLUSIONS OF LAW
1. Service connection for urinary incontinence is not
warranted, on either a direct or secondary basis.
38 U.S.C.A. §§ 1110 and 5107 (West 2002 & Supp 2005);
38 C.F.R. §§ 3.303, 3.304, and 3.310 (2005).
2. A compensable rating for status post meatotomy is not
warranted. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107
(West 2002 & Supp. 2005); 38 C.F.R. §§ 3.159, Part 4, §§ 4.1,
4.2, 4.3, 4.7, 4.27, 4.115a-b, Diagnostic Codes 7599-7518
(2005).
3. The April 1991 RO rating decision that denied service
connection for residuals of a head injury is final.
38 U.S.C.A. § 7105(b), (c) (West 2002); 38 C.F.R.
§§ 3.160(d), 20.201, 20.302 (2005).
4. New and material evidence has been received, and the
claim for service connection for residuals of a head injury
is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002);
38 C.F.R. § 3.156(a) (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board has thoroughly reviewed all the evidence in the
veteran's claims folders. Although the Board has an
obligation to provide reasons and bases supporting this
decision, there is no need to discuss, in detail, the
extensive evidence submitted by the veteran or on his behalf.
See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)
(the Board must review the entire record, but does not have
to discuss each piece of evidence). The analysis below
focuses on the most salient and relevant evidence and on what
this evidence shows, or fails to show, on the claims. The
veteran must not assume that the Board has overlooked pieces
of evidence that are not explicitly discussed herein. See
Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law
requires only that the Board address its reasons for
rejecting evidence favorable to the veteran).
The Board must assess the credibility and weight of all
evidence, including the medical evidence, to determine its
probative value, accounting for evidence which it finds to be
persuasive or unpersuasive, and providing reasons for
rejecting any evidence favorable to the claimant. Equal
weight is not accorded to each piece of evidence contained in
the record; every item of evidence does not have the same
probative value. When all the evidence is assembled, VA is
responsible for determining whether the evidence supports the
claim or is in relative equipoise, with the appellant
prevailing in either event, or whether a preponderance of the
evidence is against a claim, in which case, the claim is
denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
The veteran contends that he has urinary incontinence that
began during service. He asserts that his incontinence was
due to a bladder condition which was noted in his service
medical records. He also contends that a compensable rating
is warranted for disability due to his service-connected
status post meatotomy.
As a matter of background, the Board notes that service
medical records document treatment for urethritis due to
gonoccoccus in August 1966, and for recurrent urethral
discharge due to non gonococcal urethritis (or non-specific
urethritis) on numerous occasions throughout service. In
March 1967, it was noted that the veteran had an abnormal
meatus, and that he was sent to the urology clinic for
possible meatotomy. Subsequent service medical records show
ongoing treatment for urethritis, urethral discharge, and
dysuria. On his August 1968 report of examination prior to
separation, the veteran's genito-urinary system was evaluated
as normal. On an associated report of medical history, the
veteran checked "yes" indicating a history of VD-syphilis,
gonorrhea, etc. Physician's notes appear to read "blood in
urine on occasion" and "urethral stricture". Within days
after separation from service in August 1968, the veteran was
admitted to a VA facility with chronic urethral discharge and
intermittent paraphimosis (painful constriction of glans
penis by a phimotic foreskin, which has been retracted behind
the corona). The veteran was found to have recurrent
urethritis and was advised to undergo meatotomy and
circumcision. The veteran underwent both procedures on
August 16, 1968, and was discharged the following day. A
July 1970 clinical record shows that the veteran appeared for
complaints regarding his meatus, but cancelled his
examination and did not return.
A. Entitlement to service connection for urinary
incontinence
Service connection may be granted for a disability resulting
from personal injury suffered or disease contracted in line
of duty or for aggravation of preexisting injury suffered or
disease contracted in line of duty. 38 U.S.C.A. § 1110;
38 C.F.R. § 3.303. If there is no showing of a resulting
chronic condition during service, then a showing of
continuity of symptomatology after service is required to
support a finding of chronicity. 38 C.F.R. § 3.303(b).
Service connection may also be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d). Additionally,
service connection may be granted for disability which is
proximately due to or the result of a service-connected
disease or injury. 38 C.F.R. § 3.310(a).
To establish entitlement to service connection, there must
be: (1) a medical diagnosis of a current disability; (2)
medical or, in certain circumstances, lay evidence of in-
service occurrence or aggravation of a disease or injury; and
(3) medical evidence of a nexus between an in-service injury
or disease and the current disability. Hickson v. West, 12
Vet. App. 247, 253 (1999).
The United States Court of Appeals for Veterans Claims
(Court) has held that where the determinative issue involves
medical causation or a medical diagnosis, competent medical
evidence is required. Grottveit v. Brown, 5 Vet. App. 91
(1993); see also Espiritu v. Derwinski, 2 Vet. App. 492
(1992).
While the evidence shows the veteran suffers from urinary
frequency and incontinence, the medical evidence of record
does not show that this problem was incurred during service
or for years thereafter. More importantly, the preponderance
of the medical evidence of record relates the veteran's
current urinary frequency/incontinence to residuals of a
trauma from a work-related, multi-story fall on November 2,
1983, and not to any aspect of the veteran's period of
service or to any service-connected disorder.
Initially, the Board notes that service medical records
reveal no complaints or findings indicative of a bladder
disorder or urinary incontinence/frequency. While the
veteran was treated during service and shortly thereafter for
problems involving the distal end of his penis (recurrent
episodes of urethritis, urethral discharge, dysuria, urethral
stricture, and an abnormal meatus leading to meatotomy and
circumcision), there is no evidence showing any urinary
frequency or incontinence or problems associated with the
veteran's bladder during service. In short, complaints of
urinary frequency and incontinence were not shown during
service or for many years thereafter.
The earliest post-service record showing complaints of
urinary frequency (and the only evidence of such complaints
prior to 1983) is found on an August 1979 VA record. The
examiner noted no dysuria, hesitancy, straining, or urethral
discharge, and indicated that findings were within normal
limits. No diagnosis was provided, and no opinion was given
as to etiology.
While the veteran contends that his urinary
frequency/incontinence is related to service, there is no
medical evidence of record to support such a conclusion. To
the contrary, the vast weight of medical evidence on file
relates the veteran's urinary frequency/incontinence to an
intercurrent injury - the 1983 work-related fall.
Extensive records of private treatment document consistent
problems with urinary frequency, urinary retention, and
bladder problems beginning in November 1983. In November
1983, the veteran was hospitalized after having fallen a
number of stories while working on a construction project.
Injuries included multiple fractures to the hip and pelvis
(left intertrochanteric hip fracture and fracture of the left
superior and inferior pubic ramus). Following reduction and
internal fixation of the left hip, the veteran was examined
in urology in consultation for hematuria. He was found to
have a renal contusion but also had difficulty voiding. He
underwent urodynamic tests, the results of which were felt to
be consistent with element of neurogenic bladder. Medical
records from 1983 to 1986 show consistent treatment, testing,
and surgical investigation involving complaints of urinary
retention, urinary frequency, and bladder problems. Findings
have included: small capacity bladder with bladder outlet
obstruction, blunting and dilation of the right upper pole
calyces as well as a distended bladder secondary to a large
residual (November 1983); voiding dysfunction (April 1985);
and chronic inflammation of the bladder (November 1986
cytoscopy/biopsy). Medical records from this period
consistently link the onset of bladder problems with the
pelvic injury the veteran suffered in November 1983.
Additionally, the report of a March 1985 SSA Disability
Determination indicated that the veteran's complaints of
incontinence are supported by the medical evidence and are
credible with respect to the period beginning November 2,
1983.
Most compelling are the report of a September 1990
examination by Dr. JFM and a transcript of that private
doctor's testimony in an October 1990 deposition involved in
a legal matter against the veteran's construction company.
In his September 1990 examination report, Dr. JFM concluded
that the veteran suffered from severe genitourinary
dysfunction (including urinary frequency and loss of bladder
control) secondary to a fractured pelvis with intrapelvic
trauma from the 1983 fall. He elaborated a great deal on
this conclusion in the October 1990 deposition. Dr. JFM
noted that he reviewed the veteran's medical records (p.9)
and that he personally examined the veteran (p. 11). In
testimony spanning 10 pages of the transcript (p.49-59), Dr.
JFM goes into great detail laying out the bases for his
medical opinion that the 1983 fall and trauma to the
veteran's pelvis and bladder caused his current urinary
incontinence. He described X-rays of the veteran's fractured
pelvis (p. 67) and indicated how such injuries would damage
the bladder, leading to urinary frequency, dribbling, etc.
(p. 69).
While the claims file contains a single notation of a
complaint of urinary frequency in 1979, the overwhelming
weight of the medical evidence of record indicates that the
veteran's current urinary frequency/incontinence is related
to his injury in November 1983, and not to any aspect of the
veteran's period of service, or his service-connected status
post meatotomy. In fact, no medical evidence has been
presented showing any link between service (or a service-
connected disorder) and the veteran's urinary incontinence.
In summary, urinary frequency was not shown during service or
at separation. From the time of separation in 1970 until
1983, there is only one complaint of urinary frequency (in
1979) with no diagnosis and no opinion as to etiology.
Bladder problems including urinary frequency/incontinence
have been documented since the veteran's 1983 workplace
injury, and the weight of the medical evidence relates these
problems directly to that severe injury. Furthermore, no
competent medical evidence has otherwise been presented to
show a causal nexus between the veteran's period of service
(or any service-connected disability) and the development of
bladder problems, including urinary incontinence, many years
later.
While the veteran asserts that his urinary incontinence is
related to service, in cases such as this, where a medical
diagnosis and competent medical evidence of causation are
essential, the veteran's lay statements alone are not a
sufficient basis upon which to grant service connection. See
Espiritu, supra. The veteran's statements have been
considered, but he is not competent to testify as to medical
diagnosis or causation.
Without competent medical evidence indicating any link
between urinary incontinence and the veteran's period of
service (or a service-connected disability), service
connection can not be granted for this condition. The
preponderance of the evidence is against the claim for
service connection for urinary incontinence, and it must be
denied.
B. Entitlement to an increased rating for status post
meatotomy.
Disability evaluations are determined by the application of a
schedule of ratings based on average impairment in earning
capacity. 38 U.S.C.A. § 1155. Requests for increased
disability ratings require consideration of the medical
evidence of record compared to the criteria in the VA
Schedule for Rating Disabilities. 38 C.F.R., Part 4. If the
evidence for and against a claim is in equipoise, the claim
will be granted. A claim will be denied only if the
preponderance of the evidence is against the claim. See 38
U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1
Vet. App. 49, 56 (1990).
In evaluating the severity of a particular disability, it is
essential to consider its history. 38 C.F.R. § 4.1; Peyton
v. Derwinski, 1 Vet. App. 282 (1991). For a claim for an
increased rating, such as the claim in this case, the primary
concern is the current level of disability. See Francisco v.
Brown, 7 Vet. App. 55, 58 (1994). If there is a question as
to which evaluation to apply to the veteran's disability, the
higher evaluation will be assigned if the disability picture
more nearly approximates the criteria for that rating.
Otherwise, the lower rating will be assigned. 38 C.F.R.
§ 4.7.
As noted above, the veteran was treated during service for
recurrent urethritis related to an abnormal meatus; he
underwent meatotomy and circumcision shortly after separation
from service. The RO granted service connection for status
post meatotomy due to urethritis in 1991, and the resultant
disability has since been rated noncompensable under
38 C.F.R. § 4.115a-b, Diagnostic Codes (DC) 7599-7518. Under
DC 7518, stricture of the urethra is to be rated as a voiding
dysfunction. A 20 percent is warranted when a voiding
dysfunction requires the wearing of absorbent materials which
must be changed less than two times per day. Higher ratings
are available when urine leakage causes a greater problem.
See 38 C.F.R. § 4.115a. The Board notes that 38 C.F.R.
§ 4.115a also includes the criteria for rating genitourinary
system dysfunction manifested by urinary frequency,
obstructed voiding, and urinary tract infections.
There is no question that the recent medical evidence shows
findings that would usually require assigning a compensable
percent disability rating. However, based on the medical
evidence, the Board concludes the veteran's genitourinary
impairment and symptomatology is due to his nonservice-
connected urinary disabilities. In other words, the
determinative question in this case is not whether the
veteran has symptoms that meet the criteria for a compensable
rating (he does), but whether the current complaints and
functional impairment are due to the service-connected
residuals of the meatotomy due to urethritis or the
nonservice-connected urinary disabilities/injuries.
A regulation setting out principles relating to service
connection, while not specifically addressed to rating
service-connected disabilities, is instructive in assessing
the evidence relating to the circumstances of this veteran's
claim for an increase. It provides that, when chronicity of
a disease is established in service, subsequent
manifestations of the same chronic disease, however remote,
are service-connected, unless clearly attributable to
intercurrent causes. 38 C.F.R. § 3.303(b) (emphasis
supplied). In considering the residuals of injury, it is
essential to trace the medical-industrial history of the
disabled person from the original injury, considering the
nature of the injury and the attendant circumstances, and the
requirements for, and the effect of, treatment over past
periods, and the course of the recovery to date. 38 C.F.R.
§ 4.41.
Review of the medical evidence of record does not show that
the veteran is currently being treated for urethritis or for
any other urinary problems related to his service-connected
status post meatotomy. While the veteran has reported
urinary frequency/incontinence, that problem (as discussed
thoroughly above) is related to a 1983 injury and not to the
veteran's service-connected status post meatotomy. The Board
will not reiterate those opinions here, since they are
discussed in detail above. To summarize, no medical
professional has concluded the veteran's urinary symptoms are
due to the service-connected condition, and the medical
evidence indicates these problems are due, in fact, to the
injuries he sustained in a 1983 work-related accident.
Since the records do not reflect that the veteran's status
post meatotomy currently causes a voiding dysfunction,
urinary frequency, obstructed voiding, or urinary tract
infections, there is no basis upon which to grant a
compensable rating. See 38 C.F.R. § 4.115a. In sum, without
evidence of some disabling symptoms due to the service-
connected condition, an increased (compensable) rating for
status post meatotomy is not warranted. There is no
reasonable doubt that could be resolved in his favor since
the medical evidence is unequivocal. There are no other
diagnostic codes potentially applicable to the service-
connected condition.
C. New and Material Evidence for Residuals of Head Injury
An April 1991 rating decision denied this claim as there was
no evidence of a current disability and no objective evidence
an injury occurred in service. The veteran was notified of
this decision and his appellate rights via a May 1991 letter.
He did not appeal.
Rating actions are final and binding based on evidence on
file at the time the claimant is notified of the decision and
may not be revised on the same factual basis except by a duly
constituted appellate authority. 38 C.F.R. § 3.104(a). In
2001, the RO received the veteran's claim to reopen. In
order to reopen a claim which has been previously denied and
which is final, the claimant must present new and material
evidence. 38 U.S.C.A. § 5108. New and material evidence
means evidence not previously submitted to agency
decisionmakers which bears directly and substantially upon
the specific matter under consideration, which is neither
cumulative nor redundant, and which by itself or in
connection with evidence previously assembled is so
significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156(a) (2001);
see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The
claimant does not have to demonstrate that the new evidence
would probably change the outcome of the prior denial.
Rather, it is important that there be a complete record upon
which the claim can be evaluated, and some new evidence may
contribute to a more complete picture of the circumstances
surrounding the origin of a claimant's injury or disability.
Hodge, 155 F.3d at 1363.
The Board notes that the standard for new and material
evidence was recently amended. See 38 C.F.R. § 3.156(a)
(2004). However, that amendment applies only to claims to
reopen received on or after August 29, 2001. See 66 Fed.
Reg. 45620 (Aug. 29, 2001). Since the claim was received
before that date, the law in effect when the claim was filed
is applicable. That is the standard discussed above. The
Board further notes that the 2003 rating decision on appeal
and the 2004 statement of the case, despite recognizing that
this claim was filed in April 2001, adjudicated it under the
post August 2001 standard. This was erroneous.
The evidence received subsequent to 1991 is presumed credible
for the purposes of reopening a claim unless it is inherently
false or untrue, or it is beyond the competence of the person
making the assertion. Duran v. Brown, 7 Vet. App. 216, 220
(1995); Justus v. Principi, 3 Vet. App. 510, 513 (1992). See
also Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995).
Since the 1991 rating decision, additional evidence received
includes extensive medical evidence that is new in that it
was not previously of record. It is also material because
the additional evidence shows that the veteran has the
claimed disability - blackouts, headaches, etc. The new
evidence at least "contribute[s] to a more complete picture
of the circumstances surrounding the origin" of the
appellant's disorder, to include the issue of whether it is,
in fact, related to his military service. The additional
evidence is sufficiently significant that it must be
considered in order to fairly decide the merits of the claim.
38 C.F.R. § 3.156(a). The RO declined to reopen the claim
since some of the additional evidence relates the claimed
disability to post-service head injuries. That is a matter
for adjudicating the claim on the merits, however.
Accordingly, the Board finds that the evidence received
subsequent to 1991 is new and material and serves to reopen
the claim for service connection for residuals of a head
injury. However, the Board cannot, at this point, adjudicate
the reopened claim, as further assistance is required to
comply with the duty to assist. This is detailed in the
REMAND below.
Veterans Claims Assistance Act of 2000
With respect to the veteran's claims, VA has met all
statutory and regulatory notice and duty to assist
provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326.
Since the residuals of a head injury claim has been reopened,
as discussed above, it is clear sufficient evidence was
submitted on that particular question, and any notice
deficiencies were not prejudicial to consideration of the
veteran's claim.
Prior to initial adjudication of the veteran's claim, letters
dated in April 2002 (for the service connection claim) and
December 2002 (for the claim for a higher rating) fully
satisfied the duty to notify provisions. 38 U.S.C.A. §
5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16
Vet. App. 183, 187 (2002). The veteran was aware that it was
ultimately his responsibility to give VA any evidence
pertaining to the claims. The April 2002 and December 2002
letters informed him that additional information or evidence
was needed to support his claims, and asked him to send the
information or evidence to VA. See Pelegrini v. Principi, 18
Vet. App. 112, 120-21 (2004) (Pelegrini II). Since the Board
has concluded that the preponderance of the evidence is
against the claim for service connection, any questions as to
the appropriate disability rating or effective date to be
assigned are rendered moot, and no further notice is needed.
See Dingess v. Nicholson, No. 01-1917 (U.S. Vet. App. March
3, 2006). Since the RO assigned the noncompensable
disability rating at issue here for the veteran's service-
connected disability related to status post meatotomy, and
the Board has concluded that the preponderance of the
evidence is against assigning a higher rating, there is no
question as to an effective date to be assigned, and no
further notice is needed. See Dingess, supra.
The veteran's service medical records, records relating to
claims for Workers Compensation and Social Security
Disability benefits, VA medical treatment records, and
identified private medical records have all been obtained, to
the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. §
3.159. There is no indication in the record that any
additional evidence, relevant to the issues decided herein,
is available and not part of the claims file.
The veteran was also accorded a VA examination in March
(signed in April) 2003. That examination assessed the
urinary-related claims, which are the two claims decided
herein. The examiner stated that he could not determine
whether the veteran's incontinence was secondary to the his
meatotomy since he did not have the veteran's compensation
and service medical records for review. Ordinarily, VA's
duty to assist would require returning the file to the
examiner so that the opinion could be provided. The RO
considered doing so, but an April 2004 notation in the file
indicates that the RO concluded additional examination was
not necessary. Based on the unique circumstances of this
case, the Board concurs. The record (as discussed above) is
replete with medical evidence and opinions from doctors who
did review the veteran's entire record, all of which link the
veteran's incontinence to his 1983 fall, and not to the
meatotomy he received in 1968. Although it was error not to
return the file to the VA examiner, it was harmless, since
the VA examiner's review of the file would have shown
numerous opinions that the urinary symptoms are due to the
1983 injury. The Board finds that another examination is not
warranted, as the medical evidence of record clearly and
unequivocally shows the reported symptoms are not related to
service or a service-connected disability. The Board notes,
as well, that the recent examination did not find any
symptoms of status post meatotomy that would warrant a
compensable rating. There is no objective evidence
indicating that there has been a material change in the
severity of the veteran's service-connected disorder since he
was last examined. 38 C.F.R. § 3.327(a). Moreover, the
veteran himself does not allege that the symptoms have grown
more severe. The duty to assist does not require that a
claim be remanded solely because of the passage of time since
an otherwise adequate VA examination was conducted.
VAOPGCPREC 11-95. The 2003 VA examination report is
sufficient and supported by VA outpatient treatment records
and records of private treatment. The examination in this
case is adequate upon which to base a decision.
As there is no indication that any failure on the part of VA
to provide additional notice or assistance reasonably affects
the outcome of this case, the Board finds that any such
failure is harmless. See Mayfield v. Nicholson, 19 Vet. App.
103 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir.
Apr. 5, 2006).
(CONTINUED ON NEXT PAGE)
ORDER
Service connection for urinary incontinence is denied, on a
direct and secondary basis.
A compensable rating for status post meatotomy is denied.
As new and material evidence has been received to reopen the
claim for service connection for residuals of head injury,
the claim is reopened, and, to that extent only, the appeal
is granted.
REMAND
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2005). In the
present appeal, the appellant was not provided with
appropriate notice of what type of information and evidence
was needed to substantiate his claims involving entitlement
to service connection for diabetes mellitus and entitlement
to an increased rating for PTSD.
Regarding the issue of entitlement to service connection for
diabetes mellitus, the Board notes that no VCAA notice letter
was ever sent to the veteran. Additionally, notice with
regard to the issue of entitlement to an increased rating for
PTSD was deficient for failure to notify the veteran of what
would need to be shown for a higher rating and an earlier
effective date (see Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006)). He was sent letters on his claim for
service connection for PTSD, but was not informed of what
evidence is needed for higher ratings once he disagreed with
the initial rating. As such, it will be necessary to remand
these matters to provide the appellant proper VCAA notice.
The Board notes that the veteran has not had a psychiatric
evaluation to assess the severity of disability due to PTSD
in nearly three years. Records from this time period
(addressing the veteran's competency) appear to indicate that
his PTSD has grown more severe. In an effort to obtain a
medical assessment of the severity of the veteran's service-
connected PTSD, the veteran should be provided a new
examination.
For the reasons given above, the Board has reopened the claim
for service connection for residuals of a head injury.
Review of the record shows that the veteran is a combat
veteran, having received a Combat Infantryman's Badge. The
service medical records show treatment for agitation
following a "short round" that landed near the veteran.
Upon separation from service, the veteran noted that he had
incurred a head injury from a mortar attack. Even without
the contemporaneous in-service notations that the veteran had
injured his head during a mortar attack, the fact is that as
a combat veteran, such an injury is consistent with the
circumstances of his service, and the fact that it occurred
must be conceded. The post-service medical evidence
indicates he had post-concussion syndrome following the 1983
work accident, which included headaches, blackouts, and
dizziness. However, the evidence also shows treatment for
complaints of headaches and dizziness in the 1968 VA medical
records shortly after discharge from service. In light of
the evidence, it is reasonable to provide the veteran a VA
examination to see if he does, in fact, have any current
disorder that is related to his military service.
Turning to the issues of entitlement to service connection
for peripheral neuropathy and vasculitis, the Board notes
that the current record contains competing and uncertain
medical opinions as to the likelihood that either condition
is related to any aspect of the veteran's period of service.
A new examination with opinion(s) is in order.
Finally, the Board notes that the claim for a TDIU cannot be
addressed until resolution of the veteran's claims for
service connection and a higher rating for PTSD. The claim
for a TDIU is inextricably intertwined with these claims, and
therefore they must be addressed together. Harris v.
Derwinski, 1. Vet. App. 180 (1991).
Accordingly, the case is REMANDED for the following action:
1. The RO should ensure that the
appellant is issued a VCAA letter
appropriate for his claims of entitlement
to service connection for diabetes
mellitus, and entitlement to an increased
rating for PTSD, which provides the
notices required under the relevant
portions of the VCAA, its implementing
regulations, and pertinent caselaw
discussed above . See 38 U.S.C.A.
§§ 5100, 5102, 5103, 5103A, 5107, 5126
(West 2002 & Supp. 2005); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a)
(2005); See also Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006).
2. Obtain the veteran's records from the
VA Medical Center in St. Louis for
treatment from 2003 to the present.
3. After the VA records are added to the
claims file (to the extent available),
schedule the veteran for a VA
neurological examination to determine the
etiology of his complaints of headaches,
blackouts, and dizziness.
The examiner should provide a medical
opinion as to whether it is at least as
likely as not that the veteran's
complaints are due to any aspect of the
veteran's period of service, including a
head injury. All opinions expressed must
be supported by complete rationale, and
must discuss the medical evidence
diagnosing post-concussion syndrome
following a 1983 work injury, with
history provided by the veteran at that
time that his headaches subsided after
the 1968 VA treatment.
It would be helpful if the examiner would
use the following language, as may be
appropriate: "more likely than not"
(meaning likelihood greater than 50%),
"at least as likely as not" (meaning
likelihood of at least 50%), or "less
likely than not" or "unlikely"
(meaning that there is a less than 50%
likelihood).
The term "at least as likely as not"
does not mean "within the realm of
medical possibility." Rather, it means
that the weight of medical evidence both
for and against a conclusion is so evenly
divided that it is as medically sound to
find in favor of that conclusion as it is
to find against it.
4. After the veteran has had sufficient
time to reply to any notice letters, and
any additional records are added to the
claims file (to the extent available),
the veteran should be scheduled for
appropriate VA examination(s) to identify
the precise nature and likely etiology of
his peripheral neuropathy and vasculitis.
The examiner(s) should be supplied with
the veteran's claims folder and should
review all pertinent medical evidence.
Specifically noted in this regard are the
September 2002 and September 2003
opinions of VA doctor, AMJ, MD,
(indicating it is possible that the
veteran's vasculitis, and resultant
peripheral neuropathy, was caused by his
exposure to agent orange during military
service), the report of a March 2003 VA
examination (which appears to contain a
concurring opinion - albeit without
review of the claims file), and the
report of an October 2001 VA examination
(which contains an opinion relating the
peripheral neuropathy and vasculitis to
rheumatoid arthritis, and not to any
aspect of service). The examiner(s)
should perform any and all necessary
diagnostic testing and completely examine
the veteran prior to rendering a
diagnosis.
The examiner(s) should specifically
identify the precise nature of the
veteran's peripheral neuropathy and
vasculitis and provide a medical opinion
as to whether it is at least as likely as
not that either disorder is related to
any aspect of the veteran's period of
service, including to a service-connected
disorder or to the veteran's inservice
exposure to herbicides in Vietnam. All
opinions expressed must be supported by
complete rationale.
It would be helpful if the examiner would
use the following language, as may be
appropriate: "more likely than not"
(meaning likelihood greater than 50%),
"at least as likely as not" (meaning
likelihood of at least 50%), or "less
likely than not" or "unlikely"
(meaning that there is a less than 50%
likelihood).
The term "at least as likely as not"
does not mean "within the realm of
medical possibility." Rather, it means
that the weight of medical evidence both
for and against a conclusion is so evenly
divided that it is as medically sound to
find in favor of that conclusion as it is
to find against it.
5. The veteran should be scheduled for a
VA psychiatric examination to identify
the severity of disability due to PTSD.
The veteran's claims folder must be
reviewed by the examiners. The examiner
should describe all findings in detail,
and should explain the rationale for any
opinion given. As in the 2003 VA
examination, the examiner should
distinguish between symptoms and
impairment due to the service-connected
PTSD as opposed to any nonservice-
connected conditions (such as major
depression due to the 1983 occupational
accident), and apportion the GAF score
assigned, if possible.
6. After the appellant has been provided
sufficient time to reply, and after any
additional development of the evidence
that the RO may deem necessary, the RO
should review the record and readjudicate
the issues on appeal, including the issue
of entitlement to a TDIU. If any benefit
sought remains denied, the appellant and
his representative should be issued an
appropriate supplemental statement of the
case and afforded the opportunity to
respond. The case should then be
returned to the Board for further
appellate review, if otherwise in order.
The Board intimates no opinion, either legal or factual, as
to the ultimate disposition of the remanded issues. The
appellant has the right to submit additional evidence and
argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
No action is required of the appellant until further notice.
However, the Board takes this opportunity to advise the
appellant that the conduct of the efforts as directed in this
remand, as well as any other development deemed necessary, is
needed for a comprehensive and correct adjudication of his
claims. His cooperation in VA's efforts to develop his
claims, including reporting for any scheduled VA examination,
is both critical and appreciated. The appellant is also
advised that failure to report for any scheduled examination
may result in the denial of a claim. 38 C.F.R. § 3.655.
These claims must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
______________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs